Madras High Court
Vijayalakshmi Narayanan vs The Member-Secretary on 30 March, 2015
Author: T.S.Sivagnanam
Bench: T.S. Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:30.03.2015 Coram The Hon'ble Mr. Justice T.S. SIVAGNANAM W.P. No.28744 of 2014 1.Vijayalakshmi Narayanan 2.T.N.Chandrashekar 3.T.N.Ramakrishnan .. Petitioners Vs 1.The Member-Secretary Chennai Metropolitan Development Authority Thalamuthu Natarajan Building No.1.Gandhi Irwin Road, Egmore Chennai 600 008. 2.The Divisional Engineer (H) C&M Chennai City Roads Division Saidapet, Chennai 15. 3.Special Tahsildar (LA), Highways Mambalam-Guindy Taluk Collectorate, Chennai -01. .. Respondents Prayer :-Petition filed under Article 226 of the Constitution of India praying to issue Writ of certiorarified mandamus to call for the records of the first respondent in their letter Lr.No.TDR/17820/2013 dated 02.06.2014, conforming the order passed in letter Lr.No.TDR/17820/2013 dated 11.03.2014 and quash the same and for a mandamus to the first respondent to grant FSI benefit in the form of Development Rights Certificate in respect of the land measuring an extent of 20 cents in Survey No.332/1B of Velachery Village, Mambalam Guindy Taluk, Chennai acquired by the state Highways Departments. For petitioners .. Mr.P.Chandrasekaran For Respondents .. Mr.A.Kumar R1 Mr.R.Vijayakumar R2 & R3 Addl. Government Pleader ********** O R D E R
By consent of the learned counsel on either side, the writ petition is taken up for final disposal.
2.Heard Mr.P.Chandrasekaran, learned Counsel appearing for the petitioners, Mr.A.Kumar, learned Counsel appearing for the first respondent and Mr.R.Vijayakumar, learned counsel for the second & third respondents.
3.The petitioners have filed this Writ Petition for quashing the order passed by the first respondent dated 02.06.2014, confirming the earlier proceedings dated 11.03.2014 and for a direction to the first respondent to grant Transferable Development Rights (TDR) to the petitioners by granting FSI benefit in the form of Development Rights Certificate in respect of the land measuring an extent of 20 cents in Survey No.332/1B of Velacherry Village, Mambalam Guindy Taluk, Chennai acquired by the state Highways Departments.
4.The first petitioner is the wife of Thiru (Late) T.A.Narayanan and the second and third petitioners are their sons, who are the absolute owners of the land and property situate in Survey No. 332/1B. The said land was the subject matter of land acquisition proceedings in G.O.Ms.No.865 dated 02.08.1979, for acquiring an extent of 0.14 cents. The first petitioner's husband filed a Writ Petition challenging the acquisition proceedings in W.P.No.10074 of 1986 and this Court by an order dated 22.01.1997, directed the respondent to consider the objection of the petitioner and to proceed with the acquisition without affecting the factory building of the petitioners.
5.It is stated that at that point of time, the land which was sought to be acquired was only a portion of the land in Survey No.332/1B, measuring about 20 cents for road widening of the Velachery Main Road by the Tamil Nadu Highways Department. During 2004, the State Highways Department invoked the provisions of the Tamil Nadu Highways Act, 2001 and issued a notification for acquisition on 22.07.2004. The petitioners submitted their objections and thereafter enquiry was conducted by the District Collector in which also the petitioners appeared and only during 2012, the petitioners received a notice stating that they have to appear before the Reference Court for an enquiry in L.A.O.P.NO.107 of 2012. The petitioners filed a memo stating that they are not interested in receiving compensation for the acquired land, but, they would like to exercise their right under the Development Regulations for Chennai Metropolitan Area and in view of that the question of computing the compensation and making payment does not arise. Therefore, the petitioners exercised their option under TDR and opted for the same. The said memo was recorded and the Reference Court dismissed LAOP No.107 of 2012 by order dated 17.09.2013. When the petitioners made a request in that regard, the same was rejected by an order dated 11.3.2014 and 02.06.2014. Those two orders are impugned in this Writ Petition.
6.The learned counsel for the petitioners submitted that the Award was passed on 31.08.2010, though was not intimated to the petitioners, whereas the Second Master Plan was approved on 02.09.2008, which clearly shows that the petitioners are entitled to the benefit of TDR. Further, it is submitted that the only ground for rejection of the petitioners' Application is on the ground that the TDR Regulation is only prospective and cannot be extended to the petitioners, which is an incorrect stand taken by the respondents, moreso, when the TDR scheme was approved in 2008 and the compensation was settled only in 2010 and the project was fully completed only in 2011 and therefore the petitioners are entitled to the TDR Scheme.
7.The first respondent/CMDA, filed a counter affidavit reiterating the stand taken in the impugned order and it is submitted that the land in question was acquired by the Highways Department and possession was taken in 2005, which is prior to 02.09.2008, the date on which the Second Master Plan came into force. The second objection taken in the counter is that benefit shall not apply to a case of existing or retention users, or any compulsory reservation of space for public purpose etc. Therefore, it is submitted that the land having been taken over much prior to 2008, the petitioners are not entitled to the benefit of the scheme.
8.In order to ascertain the correct position with regard to the date on which the acquisition proceedings were finalised, the date on which the compensation was finalised and the date on which the project was completed, the second respondent was directed to file a counter affidavit.
9.From the counter affidavit filed by the second respondent it is seen that the Award was passed on 31.08.2010 and which was much after the coming into force of the Second Master Plan, which came into force on 02.09.2008. That apart, the compensation amount which was awarded to the petitioners in the said Award on 31.08.2010 was deposited into Court Account on 29.10.2012. It is the consistent case of the petitioners that they never received any notice prior to the matter having been taken on file by the Reference Court in L.A.O.P.No. 107 of 2012 and immediately after receiving the notice they appeared before the Reference Court and filed a Memo by stating that they do not want any compensation and they sought to exercise the option to receive TDR scheme. That Memo was recorded by the Reference Court and L.A.O.P.No.107 of 2012, was dismissed by an order dated 17.09.2013.
10.In such circumstances, the mere taking over of the possession of the property in 2005, itself cannot defeat the petitioners right to claim the benefit under the Second Master Plan, which introduced the scheme of TDR instead of payment of compensation. The Second Master Plan envisages the issuance of Transfer of Development Rights (TDR) to be made available to the land owner in the form of Development Right Certificate (DRC) as per the regulations 9(1) for transfer only in cases relating to public project/schemes stated under clause 1 of the said regulation and it will be available only for prospective developments and it shall not apply in the case of existing or retention users, or any compulsory reservation of space for public purpose or recreational use or EWS/ Social Housing etc., in the case of sub-divisions/lay-outs/ special buildings/group developments/ multi-storied buildings are such other developments prescribed in these Development Regulations.
11.The short question which would fall for interpretation in this regard is as to whether the petitioners case was an existing or retention users. Admittedly, the right to receive the TDR/DRC could only accrue after the compensation is determined. Therefore, prior to that date whatever action taken by the authorities could have no bearing on the right to opt for receiving TDR/DRC.
12.If such interpretation is given, it has to be held that the petitioner was entitled to opt for TDR/DRC as it has been admitted by the second respondent in the counter affidavit that the amount of compensation was finalised only on 31.08.2010. The petitioners consistent case is that they have not received any notice of the earlier proceedings and they came to know about the matter only when they received notice in L.A.O.P. proceedings. Further, the counter affidavit of the second respondent admits that the cheque relating to the compensation as awarded by the Land Acquisition Officer was deposited into Court only on 29.10.2012. Therefore, upto the said date the petitioners right to exercise their option was very much available, since the petitioners were deprived of the property, and not paid any compensation. Even if it is taken that the cut off date should be the date of completion of the project, that was also well after 02.09.2008, as admitted in the counter affidavit stating that the work was completed in all respects on 25.02.2011. The above conclusion is fortified by the language employed in the relevant Regulation. Annexure XXI (DR.No.9), is the Regulation for the grant of Transfer of Development Rights (TDR). Regulation No.1 states that the owner or lessee of the land who has the right to transfer the land, which is required for the projects enumerated in Sub-Regulations (i), (ii) & (iii) is eligible for the award of TDR in the form of FSI (in lieu of monetary compensation) to the extent and on the conditions set out in the other Regulations in annexure XXI. Thus, the benefit extended by way of TDR is in lieu of monetary compensation and that is precisely the reason, Regulation 1(iii) uses the expression award of Transfer of Development Rights. This is with a view to demonstrate that the grant of TDR being in lieu of compensation is akin to the award of compensation. Therefore, to interpret the expression used in Regulation 4 existing or retention uses should be in tandem with the language employed in Regulation 1(iii). If such interpretation is given which in my view is the correct interpretation, then in cases where the awards were passed prior to coming into force of the second master plan introducing the benefit of TDR, the right will not accrue to the owner or lessee of the land, but in cases where, awards are made after the coming into force of the Regulation (02.09.2008), the benefit has to be extended.
13. As noticed above, in the instant case the award was passed only on 31.08.2010, therefore, the right to receive compensation and the quantum of compensation which the land owner was entitled to receive stood crystallized only on 31.08.2010, by then the Regulation for grant of TDR had come into force with effect from 02.09.2008 and the petitioners were eligible for such benefit. Therefore, the interpretation sought to be given by the respondents for the expression existing or retention uses without reference to Regulation 1(iii) is a wrong interpretation given by the respondents.
14. Further, the reference case at the instance of the Land Acquisition Officer and Special Tahsildar who is the Referring Authority stood referred to the VI Assistant Judge, City Civil Court, Chennai and the reference was taken on file as LAOP No.107 of 2012. In the said reference case, the petitioners were the respondents/claimants. In the reference case, the petitioners filed a memo from which it is seen that the enquiry conducted by the Land Acquisition Officer/Special Tahsildar was on 12.09.2008 i.e., after coming into force of the Regulation for grant of TDR. The petitioners 2 and 3 attended the enquiry and submitted a letter on 12.09.2008 with enclosures such as legal heirship certificate, death certificate, patta, assessment made by the Corporation of Chennai, assessment made by MMWSSB, Encumbrance Certificate and photostat copies of the title deeds. The petitioners have stated that they were waiting for a further enquiry into the matter wherein they wanted to assert their plea for extending the benefit of Rule 9 of the Development Regulations and to request the Referring Authority to grant TDR in lieu of compensation for the land acquired by the Government.
15. The petitioners further stated that one of the neighbours received a notification dated 15.09.2010 under Section 22(2) of the Highways Act, tentatively fixing the compensation and calling upon him to appear for an enquiry on 05.10.2010. Since, the petitioners did not receive any notice, the petitioners are said to have met the Tahsildar, on 05.10.2010 along with their neighbours and at that time, they were shocked to receive the information stating that no notice was sent to them due to their non-appearance and non-submission of documents to the previous notice in reference Na.Ka.No.PKN001/2002. The petitioners would state that the said oral information given to the petitioners is completely untrue. Further, the petitioners stated that though they have not received any notice/notification from the Referring Authority, they were not interested in receiving compensation for the acquired land, but would light to exercise their right under the Development Regulation.
16. With the above facts, the petitioners submitted before the Reference Court that computing the compensation and payment of the same to the petitioners does not arise in their case. The petitioners reiterated that they were not interested in any compensation as they are exercising their option under the TDR and opt for the same and requested the Reference Court to record the same and pass further orders as deem fit. The respondents do not dispute the fact that such a memo was filed by the petitioners before the Reference Court. The Reference Court considered the memo filed by the petitioners who were the respondents therein recorded the same and dismissed the reference case filed by the Land Acquisition Officer. Thus, when the issue was first raised before a judicial forum that too, in a reference case filed by the third respondent, no objection was raised by the third respondent and the reference case was dismissed. In such circumstances, the plea now sought to be canvassed by the respondents 1 and 2 in this Writ Petition is devoid of any substance and cannot be put against the petitioners apart from the other reason assigned by this Court in the preceding paragraphs holding that the petitioners are eligible to receive the TDR.
17. The first respondent/CMDA in response to the request made by the petitioners dated 21.10.2013, informed the second respondent that on examination of the documents and the land acquisition proceedings of the Chennai District Collector in Award No.1/2010, dated 31.08.2010, it appears that the petitioners' lands in survey No.332/1B and 332/2B measuring about 20 cents is already covered as item No.20 of the said Award. With these observations, the application of the petitioners was forwarded to the second respondent.
18. On receipt of the said communication from the CMDA, the second respondent addressed the third respondent vide letter dated 30.01.2014, stating that the Collector has informed that compensation is kept under Civil Court deposit under Section 22(3) of the Highways Act and LAOP case bearing No.107 of 2012, is pending before the City Civil Court and requested for necessary remarks on the TDR proposal. In response to the said query, the third respondent by letter dated 31.01.2014, informed the second respondent (with copy to the first respondent) stating that the petitioners have not been paid any compensation and the compensation amount is kept in deposit and LAOP has been dismissed by the Court on 04.09.2013.
19. These facts will also go to show that the petitioners' right to receive the compensation stood concluded only on the dismissal of LAOP case and therefore, as on the said date, the Regulation for grant of TDR having been in force, the petitioners is eligible for the benefit of the said Regulation. Even assuming for the sake of arguments if the stand taken by the first respondent is to be accepted, where they contended that the DRC under Regulation of TDR is only prospective in nature, since the second master plan was approved on 02.09.2008, it has to be seen as to what would be the date of prospectivity for applying the Regulation. As pointed out earlier, the benefit of TDR being extended under the 2010 Regulation is in lieu of compensation. Therefore, the reasonable interpretation taking note of the fact, the petitioner has lost a valuable peace of land and the benefit being in lieu of compensation, the date of passing the award shall be the relevant date for the purpose of considering an application to be eligible for TDR. This is precisely the intention of the Regulation and that is why the Regulation uses the expression award of the TDR as the benefit is akin to award of compensation. Hence, for all the above reasons the petitioners are entitled to exercise the option to receive TDR/DRC.
20.In the result, the Writ Petition is allowed and the impugned order is quashed and the matter is remanded to the respondents to consider and grant TDR/DRC in respect of the land acquired as per the scheme opted by the petitioners and pass appropriate order on merits and in accordance with law, within a period of four months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.
30.03.2015
rpa/pbn
Index :Yes/No
Internet:Yes/No
To
1.The Member-Secretary
Chennai Metropolitan Development Authority
Thalamuthu Natarajan Building
No.1.Gandhi Irwin Road, Egmore
Chennai 600 008.
2.The Divisional Engineer (H) C&M
Chennai City Roads Division
Saidapet, Chennai 15.
3.Special Tahsildar (LA), Highways
Mambalam-Guindy Taluk
Collectorate, Chennai -01.
T.S.SIVAGNANAM J.
rpa/pbn
W.P. No.28744 of 2014
30.03.2015